Kaldas v Road and Maritime Services [2013] NSWADT 14

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Kaldas v Road and Maritime Services [2013] NSWADT 14 Hearing dates: 5 September 2012 Decision date: 23 January 2013 Jurisdiction: General Division Before: P H Molony, Judicial Member Decision: 1. With respect to Mr Kaldas' application for a drivers certificate, the decision of the Agency is set aside and in lieu thereof the Tribunal determined to issue a drivers certificate in his name. 2 With respect to Mr Kaldas' application for an operators licence, the decision of the Agency is set aside and in lieu thereof the Tribunal determined to issue a operators licence in his name. In addition to the statutory condition applicable to an operators licence that licence shall be subject to the following additional conditions: 1) That the licensed operator shall fit a computer system in each of the operators' tow trucks, with a separate email address for each truck, to receive jobs and data electronically, and that such data be backed up and available for inspection by RMS for a period of at least two years. 2)Within three months of the publication of these reasons the licensed operator at his own expense is to enrol in and commence studying a recognised training course in customer care approved by RMS. 3)Within three months of the publication of these reasons the licensed operator at his own expense is to enrol in and commence studying a recognised training course in complaint handling for managers approved by RMS. 4)The licensed operator shall complete each of the courses referred to in conditions (2) and (3) above and shall provide RMS with proof of attendance and completion. 5)The licensed operator shall, subject to compliance with applicable listening devices legislation, record all incoming customer calls and retain those records for at least three months. 6)Until such time as the licensed operator has successfully completed the course referred to in paragraph 2 above, the operator shall delegate all dealings with consumers to an employee no matter what the hour. 7.Until such time as the licensed operator has successfully completed the course referred to in paragraph 3 above, the operator shall delegate all dealings with consumers concerning consumer complaints to an employee no matter what the hour. To avoid doubt, this does require the licensed operator to delegate decision making with respect to such complaints. 8)Within 28 days of the publication of these reasons that licensed operator shall create and keep a register of property taken from vehicles in his custody in which is recorded, at minimum, the matters set out paragraph 123 of these reasons. The licensed operator should produce that register to RMS for inspection on request. Catchwords: Tow truck industry - operators licence - drivers certificate - fit and proper - public interest - issue of operators licence on conditions to protect the public interest Legislation Cited: Administrative Decision Tribunal Act 1997 Crimes (Sentencing Procedure) Act 1999 Tow Truck Industry Act 1988 Tow Truck Industry Regulation 2008 Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Cook v The Commissioner of Police [2003] NSWADT 30 Director of Public Prosecutions v Smith (1991) 1 VR 63 Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 Health Care Compliant Commission v Litchfield (1997) 41 NSWLR 631 Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 Ibrahim v Commissioner of Police [2009] NSWADT 245 Morris v The Commissioner of Police [2002] NSWADT 223Palumberi -v- General Manager, Tow Truck Authority of New South Wales [2001] NSWADT 206 Pillai v Messiter [No.2] (1989) 16 NSWLR 197 Sobey v Commercial and Private Agents Board 20 SASR 70 Category: Principal judgment Parties: Hany Kaldas (Applicant) Roads & Maritime Services (Respondent) Representation: Counsel Menzies QC with B Nolan (Applicant) D Rayment (Respondent) Mc Kenzie Leamey (Applicant) Smythe Wozniack (Respondent) File Number(s): 113239 and 113240